Delhi District Court
State vs . 1) Ashok Kr. Mishra on 6 April, 2018
IN THE COURT OF SH. SIDHARTH SHARMA, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Sessions Case No. 174/2013
Case ID No. 02403R00771022005
State Vs. 1) Ashok Kr. Mishra
S/o Raj Kumar
R/o KL 22, Kavi Nagar,
Ghaziabad, U.P. (Since died)
2) Upender Kumar
S/o Ishwar Singh
R/o 2/35 Chranji Vihar,
Ghaziabad, U.P.
(Proclaimed Offender)
3) Gokharan
S/o Nar Bahadur
R/o N-448, Sector-23, Raj Nagar,
Ghaziabad, U.P. (Since died)
4) Jaideep
S/o KC Oommen
R/o G-149, Bita-II,
Greater Noida, U.P.
5) Sunil Bhatti
S/o Bhagwati Singh,
R/o Village Chithera, PO/PS Dadri,
Distt. Gautam Budh Nagar, U.P.
6) Satish Kumar
S/o Daya Chand
R/o Village Razapur,
Shastri Nagar, U.P.
7) Gajinder
S/o Jagdish Singh
R/o SK-52, Shakti Nagar,
Ghaziabad, U.P.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 1/69
FIR No. 71/2005
U/s : 364-A/120-B IPC and 25 Arms Act.
PS: : Special Cell (Civil Lines)
Date of institution of the case : 07.10.2005
Date when the case reserved for judgment : 02.04.2018
Date of announcement of judgment : 06.04.2018
JUDGMENT
1. Brief fact of the case are that on 25.02.2005 Sh. Rajender Sharma reported in PS Civil Lines that he was residing in Laxmi Nagar and running a family business of Industrial Valves from his Shop No. 3699, Chawdi Bazaar Delhi in name and style of P. Madanlal & Co. his elder Son Rahul Sharma was residing with his wife Shivani and 2 year old son Aryan in 12 A, 1st Floor Underhill Lane, Civil Lane, Delhi. His daughter in law told him that on that day Rahul along with his driver Zakir left the house in his Lancer car No. DL 1CG 7555 magic black colour for his shop at Chawri Bazaar. At about 3.30 pm she called on Rahul's mobile no. 9810084881 but failed to contact then she called on his driver Zakir's mobile no. 9891784881 who reported that Rahul is inside office after coming out he would let him talk. After some time Shivani again tried to contact Rahul and Zakir on their phones but failed. At about 5.30 pm he received a call on his Shop's landline phone no. 23286929 from other side a person named himself Shakir stated that Rahul is safe with him if he want him safe he had to give them money, he would let him talk State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 2/69 to Rahul after 15-20 minutes. After 15-20 minutes complainant received phone call and Shakir let him talk to his son Rahul, Rahul stated that 'they have brought him to some unknown place. You don't worry' the person snatched the phone from Rahul and said that 'how much money I can give them? He would call him next day at 11.30 am and phone got disconnected. After sometime his son Rajat informed him that Lancer car of Rahul was parked in VIP Parking of New Delhi Railway Station. He doubted that his son Rahul Sharma has been kidnapped.' On this complaint case was registered and investigation taken up by Insp. Gulam Sabir, Addl. SHO, PS Civil Lines. During investigation he interrogated family members of Rahul and driver Zakir and put concerned phones under observation, took Lancer car No. DL-1CG-7555 in police possession and after examination by crime team found that the chance prints lifted were either hazy, partial or smudged hence they wre unfit for any opinion. He made every effort to trace Rahul Sharma. In between the kidnappers demanded Rs. One crore as ransom for release of Rahul. Call details and observation of phone number lead to information that area of operation of kidnappers is Greater Noida and surrounding places. Efforts were made to trace the hostages and side by side negotiation was carried on regarding ransom and release of hostages. On 27.02.2005 the investigation of the case was transferred to Special Cell, NDR, Lodhi Colony, Delhi and was entrusted to SI Girish Kumar. On that day after negotiation the ransom amount was settled to Rs. 20,00,000/- which was managed by complainant Sh. Rajender Sharma in form of 19 wads of Rs.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 3/69 1000/- and two wads of Rs. 500/- which was put into a black handbag as per direction of kidnappers and a memo of notes was prepared. On the basis of conversation teams were constituted and placed in different area around Surajpur, Greater Noida and Modinagar and ASI Devender was made driver of Rajender Sharma for delivery of Ransom but kidnappers did not turn up and gave him time for next day. Suddenly at about 11 pm on 27.02.2005 Shivani wife of Rahul Sharma received call from kidnappers to bring the money and reach near Petrol Pump after Hidon River Bridge. Shivani reached there in a car along with his father Sh. Tara Chand Sharma and at about 11.30 pm four persons in a yellowish Esteem car arrived there and took off the bag containing Rs. 20,00,000/-. The police did not disturb the kidnappers in view of safety of victims. After that kidnappers called Shivani and promised to release hostages near Cross Road Sector
-37, Noida near BP Petrol Pump on the Surajpur -Greater Noida Road. On this teams were deployed around the area. At about 3.30 am one Maruti Esteem was noticed coming from Surajpur Greater Noida Side which was followed and watched carefully and that Esteem car dropped two persons who were confirmed as victim Rahul Sharma and his driver Zakir. The golden / yellowish colour Maruti Esteem car bearing no. DL 6CG 5862 after dropping the hostages took U turn returning towards Surajpur (Greater Noida) road from the crossroad, it was chased by teams deployed surrounding the area and after a chase of about one kilometer the Maruti Esteem was intercepted and three persons sitting inside the car were overpowered by police teams. Meanwhile the victim Rahul Sharma along with his State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 4/69 father also reached the spot. On enquiry the person sitting on driving seat was identified as Sunil Bhatti, son of Bhagwat Singh, resident of Village Chithera PO/PS Dadri, Distt. Gautam Budh Nagar, U.P., aged 29 years, while the identity of the other person sitting on the left side of driver was revealed as Ashok Kumar Mishra, son of Raj Kumar r/o KL 22, Kavi Nagar, Ghaziabad, U.P., aged 62 years and the identity of the third person was revealed as Upender Kumar son of Ishwar Singh resident of 2/35 Chiranji Vihar, Ghaziabad, aged 30 years. From the cursory search of Sunil Bhatti a country made katta of .315 bore with two live cartridges were recovered from his left dub and right pant pocket respectively from his coat's inner pocket total Rs. 2.5 lacs of Rs. 1000/- denomination were recovered. The katta was sketched, seized and sealed as per procedure, form CFSL was filled and sealed. All the three persons were identified as kidnappers. One big knife was recovered from dashboard of Esteem car. The same was also seized, sealed as per procedure. On instance of Ashok Mishra one suitcase from rear seat of the car was recovered and on opening by the number 011 given by him total six wads of Rs. 1000/- amounting six lacs was recovered which was sealed with the seal of GKS and seized as per procedure. All the three persons were identified as the abductors and identification memos were prepared. One mobile phone each was recovered from possession of accused persons which were seized. After this all the three accused persons were arrested and their disclosure statements were recorded separately. The Esteem car was also seized. After this custody of accused Upender was handed over to SI Amul Tyagi for recovery of State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 5/69 his share of ransom amount from his house as per his disclosure. After this the accused persons led the police party to F-90 Alpha -II, Greater Noida, U.P., victim Rahul Sharma identified the house to be same in which he along with his driver was kept as hostage. At about 6 am Satish Kumar son of Daya Chand and Gajinder, s/o Jagdish Singh were found present inside the house. Satish and Gajinder were identified as person who used to guard hostages and bring necessary items from market. On cursory search of Satish total Rs. 1.5 lacs was recovered from his possession and from Gajinder Rs. Two lacs were recovered, they stated it to be their respective share from the ransom money received from Rahul Sharma. Onoe mobile phone was recovered from each accused. Both the accused were arrested as per procedure and their disclosure statement was got recorded. On instance of arrested accused one knife which was used to threaten the hostages was recovered from kitchen of the house, sketch was prepared and pullanda of knife and recovered money was prepared and same was sealed with seal of GKS from one room two cotton ropes were recovered used to tie the hostages. From another room one uniform with parrot cap and belt were recovered. All the recovered things were taken into police possession through procedure and seized as per memo. On instance of accused Ashok Mishra the black colour leather bag which was used to keep the ramsom money while delivery was recovered from roof of house which was identified by Sh. Rajender Sharma, father of victim. Rahul Sharma identified accused persons and the room in which he was kept hostage and another room where Zakir was kept. Accordingly SI State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 6/69 Girish Kumar prepared identification memo of the accused and site plan of the house. After that the accused person led the police party to G-149, Beta-II, Greater Noida, U.P. where at about 10 am accused Jaideep and Gokharan were found present, both the two persons were interrogated and they were arrested respectively. Their disclosure statements were recorded. Accused Jaideep got recovered a black colour small bag in which he kept his share of Rs. Three lacs from drawer of the bed which was kept in a white cloth pullanda was prepared and sealed and accused Gokaran got recovered Rs. 2.5 lacs and a country made pistol with a round, one round was recovered from his pant's right pocket and accordingly khakha was preapred, the recovered money and katta was sealed and seized separately as per procedure. Accused Ashok got recovered five mobile phones from lower cabin of the bed which were seized through memo. Victim Rahul Sharma identified the persons to be member of kidnapping gang who used to threat him and remained active in planning the game. Accused Upender Kumar got recovered his share of Rs. 2.5 lacs from his house. Statement of witnesses were recovered. Accused persons were taken into police custody remand and interrogated thoroughly all of them disclosed their involvement in this kidnapping and gave a view to plan and incident i.e. A.K. Mishra and Upender Kumar had idea of kidnapping. They planned and conspired the kidnapping with help of other accused persons about 12 days back and started working on the plan as per work assigned to each person. Jaideep who has experience of Engineering goods and market bearers, as he was a supplier in LG State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 7/69 factory selected the victim and called in the name of Thomas and fixed the meeting and also managed Mobile Phone and SIM card without identity proof along with Sunil Bhatti, accused Upender managed to rent the accommodation i.e. F-90 Alpha II Greater Noida where the hostages were kept, he too did not disclosed his identity, Jaideep borrowed Esteem car of his acquaintance, Sunil Bhati and Gokaran managed arms and ammunition and rest every thing was planned and managed by Ashok Mishra, Satish and Gajinder wre supporters for procurement of necessary things and to take care of hostages. During police cusody remand accused spotted the places where the mobile phone and SIM used in incident was thrown after crushing them. They also disclosed some other kidnappings but victims did not turn up. Statements of house owner where they kept hostages, property dealer and shop owner from where they managed SIM cards without identification and from whom they borrowed the Esteem car used in incident, were recorded under section 161 Cr. P.C., they identified the relative accused persons. Recorded cassettes of telephonic conversation between kidnappers and relatives of victim were obtained transcription was reduced into writing, voice samples of accused Ashok Kumar Mishra who was calling by name Zakr and 'Aslam' and Upender Kumar, who was talking with name 'Javed' were recorded voice samples and recovered arms and ammunition was sent to CFSL, CGO Complex, N.Delhi for expert opinion. Expert opinion in regard to recovered country made pistols from Sunil Bhatti and Gokharan have been obtained and as per result the country made pistols are firearms as defined int the State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 8/69 Arms Act, 1959 and are in working order and the cartridges are ammunition and were live ones. Request for sanction under section 39 Arms Act has been moved.
2. After recording statements of the witnesses and completion of the investigation, charge-sheet was filed against the accused.
3. By order dated 10.11.2005 charge under section 364 A/ 120 B IPC was framed against all the seven accused persons namely Ashok Kumar Mishra, Upender Kumar, Gokharan, Jaideep, Sunil Bhatti, Satish Kumar and Gajinder to which they pleaded not guilty and claimed trial. Separate charges under section 25 Arms Act were also framed against accused Sunil Bhatti and Gokharan. To prove its case the prosecution examined 28 witnesses (two separate witnesses have been examined under the PW no. 23). The details of the witnesses examined during the course of the trial are tabulated as under:-
S.No. NAME RELEVANCY PW 1 Rahul Sharma He is the victim, who has deposed as to how he went to Greater Noida upon being called by one Thomas (accused Jaideep).
PW 2 Zakir He is the driver of PW 1 Rahul Sharma, who went with the victim to Greater Noida in his Lancer car and both of them were subsequently State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 9/69 abducted.
PW 3 Rajinder Kumar He is the father of PW 1 Rahul Sharma Sharma. He was hostile on certain material points and was cross examined by Ld. Addl. PP for the State as he was resiling from his earlier statement on some material points.
However, this witness gave evasive replies with respect to the recoveries held in his presence.
PW 4 Tara Chand He is the father in law of PW 1 Rahul
Sharma Sharma and went to handover the
ransom amount. This witness was
also hostile on certain material points and was cross examined by the Ld. Addl. PP for the State.
PW 5 Sushil Kumar He is a formal witness stating that he Garg had rented his house in Greater Noida to accused jaideep.
PW 6 Ms. Harmeet She is the owner of a property, who Kaur Nanda again is a formal witness and did not state anything regarding the present case.
PW 7 Sh. A. Dey (FSL He examined the recovered country expert) made pistol and proved his report. PW 8 SI Amul Tyagi He was present in Noida on 28.02.2005 when he received a call at 5 am from IO of the case and reached the spot where the accused persons A.K. Mishra, Upender Singh and Sunil Bhati were apprehended by IO SI Girish Kumar. He deposed regarding subsequent investigations and arrest of other accused persons from Greater Noida.
PW 9 Sh. R.K. Singh He proved the call details, however, no State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 10/69 (Nodal Officer) certificate under section 65 B of Evidence Act was given by this witness. He also could not prove any authority letter to show that he had authority on behalf of mobile operator to depose in the Court.
PW 10 Neeraj Verma He is LDC in Delhi Secretariat, Home Department. He had come to prove the record pertaining to permission granted by Sh. Narainan Swami, the then principal Secretary (Home) for interception of the connected mobile numbers. The said permission was marked. However, this letter was never proved by the prosecution as neither the principal Secretary (Home) came as a witness and therefore the document could not be exhibited.
PW 11 Ct. Ajay Kumar He was hearing interceptions upon oral directions of his senior officers.
He also recorded the intercepted conversations and handed over the cassette to IO SI Girish Kumar.
However he is neither person who is operating upon the electronic device where interception were carried out and no certificate under section 65 B was given by this witness.
PW 12 HC Satender He is the duty officer who recorded the Kumar FIR.
PW 13 Inspector V.N. He is part IO of the case and two Jha accused persons namely Jaideep and Sunil Bhati were handed over to him.
He took the accused persons to a mobile shop in Gaffar Market, Karol Bagh of one Iqbal Singh.
PW 14 Mukesh Kumar He was a property dealer, who got a State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 11/69 house on rent to co-accused Mukesh Kumar. This witness is a formal witness.
PW 15 ASI Ashok He is a formal witness who deposited Kumar the case property FSL, Lodhi Road after obtaining the same from MHCM Special Cell.
PW 16 HC Rajinder He went along with the IO to the Singh mobile shop of Iqbal Singh.
PW 17 Iqbal Singh He is a public witness. He is totally hostile to the prosecution case and denied the suggestion that police had come and he had identified both the accused persons Jaideep and Sunil Bhatti, who have purchased the mobile phone from his shop.
PW 18 ASI Hira Lal He was posted in Special Cell and heard the intercepted calls and recorded the same in cassette recorder. He handed over it to SI Girish Kumar, however, he is neither the person under whom the electronic device was working nor gave any certificate under section 65 B of the Evidence Act.
PW 19 Ct. Sanjeev He is the MHCM.
Kumar PW 20 Inspector Gulam He was initial IO of the case and Sabir investigated the same as Addl. SHO PS Civil Lines. He made attempts to find the abductors, but could not succeed and the case was transferred to Special Cell. This witness has been re-examined by the Ld. Addl. PP for the State on certain material points.
PW 21 D.K. Tanwer (Sr. He compared the recorded intercepted State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 12/69 Scientific Officer, calls with the specimen calls and gave CFSL, CBI) the report that the voice was matching.
PW 22 HC Sukhbir He went with SI Amul Tyagi to the spot
Singh where IO SI Girish Kumar had
abducted the accused Sunil Bhatti,
Upender and A.K. Mishra.
PW 23 SI Sanjeev He was posted in Special Cell and
Verma heard the intercepted calls and
recorded the same in a CD. He
handed over it to the IO.
PW 23 ASI Rakesh He brought the record of DCP, who
Kumar accorded the sanction under section
39 Arms Act. However, DCP Special
Cell Ashok Chand did not came to the
witness box to prove the sanction.
PW 24 Pawan Singh, He brought the CDR of mobile no.
Nodal Officer 9891784881 in the name of PW 3
Rajinder Kumar. This witness has
given 65 B certificate. He also proved
that on 28.02.2005 the mobile of PW 2
Zakir Khan had the location of
Dayanand Vihar, East Delhi at 6.51
am.
PW 25 HC Kartar Singh He is the MHCM of the case and proved the deposit of Lancer car.
PW 26 Insp. Umesh He was one of the members of the six Barthwal teams deputed to investigate the present case. He has participated in the investigation along with the other team members.
PW 27 Insp. Girish He is IO of the case who has Kumar. completed the investigation and prepared various documents and filed the charge sheet.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 13/69
4. During the course of trial accused Ashok Kumar Mishra and Gokharan had died and accused Upender was declared 'Proclaimed Offender'.
5. After prosecution evidence was closed statements of remaining accused persons namely Jaideep, Sunil Bhatti, Satish Kumar and Gajender were recorded under section 313 of the Cr. P.C. They denied all the incriminating evidence put to them and claimed that they have been falsely implicated by the police officials. Accused Jaideep, Satish Kumar and Gajender refused to lead defence evidence. Only accused Sunil Bhatti led evidence in defence.
6. Sh. Niket Joshi, Manager, RBI, examined in defence evidence as DW 1. He has stated that the notes recovered from the accused persons were not issued by the RBI on the date of incident. He has also proved the same vide reply given in the RTI.
7. Ld. Counsel for the accused Jaideep has argued that prosecution has failed to prove the case. He has pointed out that as per the case of the prosecution, PW 1 and PW 2 had left for Greater Noida in their Lancer car. However, as per the younger brother of PW 1 namely Rajat, the said Lancer car was standing at the VIP parking at New Delhi Railway Station in the evening.
8. It is argued that if the abduction had taken place on State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 14/69 25.02.2005 then it was not proved by the prosecution as to how the Lancer car was found parked on the same evening at New Delhi Railway Station. It is further argued that as per the case of the prosecution the victim was having telephonic conversation with accused Jaideep @ Thomas for number of days prior to his abduction, but prosecution had failed to prove the CDRs of the said conversation. It is argued that the Maruti Esteem car recovered from accused Upender, Sunil Bhati and Ashok Mishra had no connection with accused Jaideep. It was further argued that the recovery and arrest of accused Jaideep is doubtful as the call details of mobile of PW 1 Rahul on 28.02.2005 at 8.34 am showed him to be at Daryaganj and not at Noida / Greater Noida as per the case of the prosecution. Similarly, the CDRs of PW 2 Zakir on 28.02.2005 at 6.51 am showed him to be present at Daya Nand Vihar, East Delhi and not at Noida / Greater Noida which demolishes the case of the prosecution. It is pointed out that PW 3 categorically stated that as soon as PW 1 Rahul and PW 2 Zakir were dropped by the abductors he had sent both of them to Laxmi Nagar. This statement completely demolishes the case of the prosecution that PW 1 Rahul and PW 2 Zakir were present at Noida or Greater Noida at the time of arrest or recovery of other accused persons. It is further stated that all the paper work during investigation was conducted at the police station. It is pointed out that public witnesses including victim PW 1 and PW 2 categorically stated that they went to the office of Special Cell on 29.05.2005 and the case property as well as investigation papers were signed on that day which means that seizure and arrest memos State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 15/69 were not prepared at the spot which casts doubt on the story of the prosecution regarding recovery and arrest.
9. On behalf of accused Satish and Gajinder it was argued that PW 1 Rahul vastly improved his statement which were confronted to him during his cross examination. It was pointed out that PW 1 admitted that he had not seen any amount being recovered from the accused at Greater Noida. He further admitted that the case property was shown to him at the police station, Lodhi Colony. Ld. Counsel has further pointed out that PW 2 Zakir Ali admitted in his cross examination that case property was shown to him on 29.02.2005. He had argued that this makes the whole recovery doubtful as no sealing took place at the spot on the morning of 28.02.2005. It was further pointed out that PW 2 admitted in his cross that all the seven accused persons were taken to the Police Station Lodhi Colony at about 6-7 am, but that again demolishes the prosecution case as accused Satish and Gajinder had been arrested from Greater Noida about 6.45 am as per case of IO. It is also seen that this witness was present at Dayanand Vihar, East Delhi at 6.50 am and therefore he could not have been present at the PS Special Cell or at Greater Noida as per the version of prosecution. Ld. Counsel had further argued that no public witness had been associated with the recovery or with the arrest and subsequent investigation inspite of their availability. It is also pointed out that PW 4 Tara Chand also admitted in his cross that after the release of PW 1 and PW 2 they were immediately brought in his car to Laxmi Nagar State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 16/69 which is contrary to the case of the prosecution that they went to Greater Noida to get the accused persons arrested. It is further pointed out that as per the currency notes allegedly recovered from the accused persons as per the report of RBI as proved by DW 1 Niket Joshi, they were not even printed in the year 2005 at the time when the recovery took place and the said reply was made by DW 1 Niket Joshi and the reply was obtained by a RTI from the RBI proved as Ex. DW 1/A (colly).
10. On behalf of accused Sunil Bhati it was argued that case under section 364 A is not made out against the accused no.5 as none of the witness have named him. It is pointed out that the allegations against him was with respect to dropping both the victims at petrol pump at Sector-37, Noida. It was pointed out that there were number of discrepancies in the evidence which had been shown in the written arguments filed by ld. Defence counsel. Ld. Counsel had pointed out that there were fabricated disclosure statements and fabricated recovery of currency notes and he had proved number of documents like Ex. PW 26/DA and Ex. PW 26/E which were two documents purporting to be disclosure statement of accused Sunil Bhati, but in Ex. PW 26/DA it is seen that the recovery of Rs. 2.5 lacs was from a box in his room of the house located at village Chithera, Greater Noida, but as per Ex. PW 26/E the recovery was made from the Esteem car at petrol pump at Noida. It was pointed out that by mistake the prosecution gave these documents along with other fabricated documents while supplying of copies under section 207 Cr.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 17/69 P.C. It was pointed out that PW 26 Inspector Umesh Barthwal, who had signed on some documents admitted the said documents stating that there are photocopies of original documents.
11. Ld. Counsel has also pointed out towards Ex. PW 26/DB and Ex. PW 26/1K which were with respect to seizure memo of currency notes from accused Sunil Bhati. The same was the position with respect to recovery of katta and cartridges and two documents Ex. PW 26/D and Ex. PW 1/G had been prepared. Ld. Counsel has further pointed out that in the RTI moved by accused Ashok Kr. Mishra, it was informed by the bank that on the day of recovery the said currency notes were not even issued by RBI. Ld. Counsel has further drawn my attention to Ex. PW 1/C and Ex. PW 26/DX which were documents regarding recovery of katta and cartridges and again these two documents were showing discrepancies. He had pointed out that PW 2 Zakir Ali stated that the accused persons were not arrested in his presence and he did not sign any document at the place where accused persons were stated to have been arrested in his presence which again casts doubt on the story of the prosecution. He had pointed out that as per PW 13 Inspector U.N. Jha accused Jaideep and Sunil Bhati were arrested and taken to shop at Gaffar Market belonging to PW 17 Iqbal. PW 17 was totally hostile to the case of the prosecution and denied that police ever brought them to his shop or any mobile was purchased by the said accused persons which again demolishes the case of the prosecution. Ld. Counsel had pointed out towards Ex. PW 1/S-12 and Ex. PW 26/DM, which is the State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 18/69 identification memo of accused Sunil Bhati by PW 1 Rahul which again were two documents as one of the document did not bear signatures of IO but the fabricated document bore his signatures. Similarly Ex. PW 26/2 and Ex. PW 26/DR were the identification memo of accused Sunil by PW 2 Zakir which are again two documents with respect to same investigation. Ld. Counsel had further pointed out that no TIP proceedings were conducted. He had pointed out that there were other documents also which showed that fabricated documents were prepared with respect to other accused persons. He had pointed out that no recoveries were made in the presence of the victims which has been admitted by them. He had pointed out that the victims did not accompany the police and investigating officer during the investigation and arrest at the house located at Sector Alpha and Beta located at Greater Noida. He had pointed out that there was no independent public witness inspite of the place, from where accused persons were arrested, being a residential locality. It is pointed out that no police persons were called from Noida or Greater Noida. He had pointed out towards various discrepancies and contradictions in the statements of public witness Rajinder Kr. Sharma from the statement of police witness PW 26 Inspector Umesh Barthwal. He had relied upon the judgment cited as Raj Kumar Singh v. State of Rajasthan, the Hon'ble Supreme Court of India has held that:-
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 19/69 a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
12. On the other hand, Ld. Addl. PP for the State had argued that prosecution had been able to prove its case beyond reasonable doubt. He had argued that both PW 1 and PW 2, who were victims had categorically deposed against the accused persons and had duly identified them in the Court. He had further argued that PW 2 and PW 3 who are father and father in law of PW 1 had also proved the recovery. It is pointed out that the CDR records proved by the Nodal Officer proved the ransom calls. He further argued that intercepted State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 20/69 calls of the ransom had also been proved by the prosecution. He has stated that police witnesses had proved their investigations and hence had prayed for conviction.
13. I have heard the arguments on behalf of the accused persons as well as Ld. Addl. PP for the State.
14. Upon perusal of the record and documents proved by prosecution and defence, I have come to the conclusion that prosecution has not proved its case beyond reasonable doubt. My reasons for such conclusion is due to the following reasons:-
i) Non-association of public witnesses at the time of the recovery, arrest and subsequent investigation done by the police.
In the following judgments the non-association of public witnesses was dealt with:-
It was laid down by Hon'ble High Court of Delhi in case of Rajesh Kumar @ Sanjay & Ors. vs. State (NCT of Delhi), 2014 (6) LRC 317 (Del), that :
"Despite availability of independent public witnesses, no genuine and sincere efforts were made by Investigating Officer to associate them and when there is number of vital contradictions, inconsistencies and infirmities which have emerged in evidence of police officials, such statements of official State vs. Ashok Kumar Mishra & Ors. FIR No.71/2005, PS: Special Cell (Civil Lines) 21/69 witnesses without corroboration from independent sources cannot be believed to base conviction for stringent provisions of the NDPS Act. Law on this aspect is that "stringent the punishment stricter the proof".
Failure of prosecution to establish commission of offence by appellants beyond reasonable doubt. Appellant deserves benefit of doubt. Conviction is set aside."
The Hon'ble Supreme Court in Criminal Appeal No. 682/15 (arising out of SLP Crl. No. 458/13, decided on 21.04.15), titled as Makhan Singh vs. State of Haryana, held that :
"Though it is well settled that conviction can be based solely on testimony of official witnesses, condition precedent is that evidence of such official witnesses must inspire confidence. High Court ought not to have overlooked testimony of independent witnesses, especially when it casted doubt on recovery and genuineness of prosecution version."
In case of Masoom & Ors. v. State of NCT of Delhi & Ors., Crl. A. 1086 & 1404/2011, decided on 09.04.2015, Hon'ble High Court of Delhi held that:
"despite availability of independent public witnesses, no genuine and sincere efforts were made by Investigating Officer to associate them. Explanation offered by Investigating Officer not inspire confidence. Testimonies of Panch witnesses were given due weightage. It was unclear as to why State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 22/69 said procedure was not replicated I such cases. Appellants conviction based on testimonies of police officers only. Their testimonies required to be perused with great care and caution. It was unexplained as to why Appellants were not informed that Gazetted Officer was present near spot and they could be produced before him for search. Prosecution witnesses given conflicting version regarding filling up o0f FSL form at spot. Prosecution evidence be examined very zealously so as to exclude every chance of false implication.
Prosecution failed to establish commission of offence by Appellants beyond reasonable doubt. Benefit of doubt given. Appeals allowed and impugned order set aside."
Recently, Hon'ble High Court of Delhi in its landmark judgment in case of Om Prakash vs. State, III (2014) CCR1 (Del.), has dealt with the procedure to be followed by Investigating Agency while dealing with the NDPS Cases in respect of the public witnesses, as follows:-
"Routinely, no attempt is being made by the police in such cases to associate public witnesses. In the absence of clear evidence to show that a sincere effort was made, the Court should not simply accept the proposition that generally in such cases no member of the public comes forward to help the prosecution. In Ajmer Singh v. State of Haryana MANU/ SC/0111/2010 : (2010) 3 SCC 746, it was held that in such circumstances the Court will have to determine whether the evidence of the police officer "was believable after taking due care and caution in evaluating their evidence". In the present case, given the shoddy investigation, the failure to associate any State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 23/69 independent witness constituted an additional factor to disbelieve the case of the prosecution."
It is seen that inspite of the fact that the accused persons were arrested at public place and house from where accused had been arrested is surrounded by residential as well as commercial complex. The IO did not make any effort to call any public persons to be associated with the recovery, arrest and the investigation in the case which casts serious doubt on the arrest as well as recovery.
During the course of investigation, no investigation or inquiry was conducted in the neighborhood of House No. F-90, Alpha-II, Greater Noida, i.e., the place where the hostages were alleged kept and the Investigating Authorities did not even call or involve the Local Police Officials or any public witnesses. No independent witnesses were involved in the alleged recoveries made from the house situated in Alpha II, despite the fact that the said house is situated in residential area. Even PW-1 (Rahul Sharma) has stated in his cross- examination that "There were other residential houses around the Alpha II house, where I was detained. Police did not call anyone from the neighboring houses of Alpha II.... The second house is also surrounded with residential houses. No one was called from the neighbouring houses." This is further corroborated by the statement PW2 (Zakir Ali) where he states that "I do not know whether the Police officials had called any resident from the locality or not, in my presence I had not seen calling anyone."
"No person from the local police station had been asked to join the police party."
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 24/69 "I cannot tell whether police official had called any neighbor or intimated any one of them when they left the spot."
ii) Non admissibility of the electronic evidence including the voice as well as the CDRs, sought to be proved by the prosecution.
I purposed to deal with the following case laws on the subject cited above:-
In the case of Anvar P.V vs P.K Basheer & Ors Civil Appeal No. 4226 of 2012, where it was held that :-
"The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus no derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65 A dealing with the admissibility of electronic record. Section 63 and 65 have no application in the case of secondary evidence by way of electronic record:the same is wholly governed by Sections 65 A and 65 B. to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu Case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of Secondary evidence shall State vs. Ashok Kumar Mishra & Ors. FIR No.71/2005, PS: Special Cell (Civil Lines) 25/69 not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, Chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
The said law was followed by Hon'ble High Court of Delhi in case of Jagdeo Singh & Ors. Vs. State of Delhi, Crl.A. 527 of 2014 where it was held that :-
68. At this stage, it is necessary to understand what should be done to satisfy the requirement of Section 65B EA. It has been reiterated by Mr. Katyal, learned APP, before the Court and in the written submissions that there was „substantial compliance‟ with Section 65B EA. This provision is inserted in the Chapter V titled „Of Documentary Evidence‟. It occurs after Section 65 which permits secondary evidence to be given in relation to documents. Both Section 65A which is titled „Special provisions as to evidence relating to electronic record‟ and Section 65B regarding „Admissibility of electronic records‟ proceed on the major premise that as far as the electronic records are concerned, it may be difficult in many instances to produce „original record‟ which would be on a huge server or a server that is unable to be produced before the Court or on a major tower etc. The very purpose of Section 65B EA was to obviate this difficulty.
What it essentially does is it brings State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 26/69 secondary evidence to the level of primary evidence in order to make it admissible in accordance with law. All conditions set out in Section 65B (2) and Section 65B (3) EA have to be satisfied.
69. The mandatory requirement under Section 65B (4) is that the certificate produced should satisfy the requirement under Section 65B (4)
(a), (b), and (c) and the requirement that they should be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate). The electronic evidence thus produced that is accompanied by such certificate "shall be deemed to be also a document", dispensing with the further proof of production of the original. In other words, there is no escape from the requirement of producing the signed certificate by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities.
70. PW-1 is the witness who tells the Court that he was himself listening to the intercepted conversations. However, he is unable to tell the Court anything whatsoever about the original computer device in which the taped conversation was recorded.
Importantly he is not the person who is "occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities". His evidence only states that when the Liberty and Satyam Cinema bomb blast cases were being investigated, "I was State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 27/69 directed to listen the conversation on those numbers." He then states that "During the course of observation one of the numbers, i.e., 9876933745 came to our knowledge and the said mobile was also taken on observation and we came to know that the said mobile phone was used by accused Sukhvinder @ Sukhi present in the Court today."
71. There is no certificate issued in terms of Section 65B EA either by PW-1 or anyone else. It is understandable that PW-1 being a police officer and not conversant with the operation of a device used to record the conversations which he was listening, may not be the person capable of giving such a certificate in the first instance. But then there is no certificate by any other person satisfying the requirement of Section 65-B (4), i.e., a person "occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities".
72. PW-1 states that on 2nd April 2008, which is nearly one year after the arrest of A-1 and A-2, he "obtained the permission from competent authority regarding observation of 4 mobile having no.
9876933745, 9317434945, 9811328712, 9871060613" and he was "deputed to hear the conversation on the aforesaid mobile phones." He states that "he got collected the aforesaid information in my pen drive and the same was handed over to the SI Upender Solanki, who copied the said information in his own computer and returned my pen drive." It was only in 2008 that PW-1 handed over the conversation State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 28/69 downloaded by PW-17. In the words of PW-
1 himself, PW-17 in turn prepared the CDs of the conversation which he listened to. A separate folder was prepared. In effect what was happening in the process was that electronic data was copied from one device to a pen drive. This was then handed over to and further copies made out of it by another police officer, in this case PW-17. When he was examined in detail it became apparent that what was being spoken of was the making of further copies of those copies. The original remained on a server which none of the other persons had occasion to access.
73. The Court has not been shown any certificate under Section 65-B EA which is in writing signed by the person "occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities". Since PW-17 can speak only about the computer which he was using and what he was listening to on it are copies made of the originals, no part of Section 65-B EA can be said to have been complied with, much less "substantially complied with".
74. The trial Court went only by the judgment in Navjot Sandhu (supra) to come to the conclusion regarding substantial compliance with Section 65-B EA. However, what was perhaps overlooked was that even in terms of the said decision, secondary evidence could have only been led by a person who was otherwise conversant with the working of the computer system or who could recognise the signatures and writings of the person who had given certificate in State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 29/69 relation to the working of such system. No such person was examined in the present case. It has also come in the evidence of PW-17 himself that "I did not at any time make an enquiry whether the original computer monitoring system which was recording the intercepted call had a breakdown or not."
75. The other piece of electronic evidence is the intercepted mobile conversations. PW- 28 Dr. Rajinder Singh, the CFSL expert, who analysed the voice samples stated in his cross-examination: "The intercepting machine was not sent to us and the questioned sample was sent in a cassette." As far as Inspector Sandip Malhotra (PW-
30) is concerned, his evidence is to the effect that he was the administrative head of the system which was used for monitoring the calls. The password of the said system remained with him. He opened the system using the password and in his presence PW- 1 copied the relevant calls. He has stated "The computer system runs 24 hours under my supervision and custody. I state that there was no problem in the operation of the computer system while recording the calls in the present case and there was no breakdown whatsoever. I was present during the entire period the relevant data was copied from the hard disk of the computer system to the pen drive and no tampering was done at that stage."
76. In his cross-examination he stated that no record was maintained regarding the data having been transferred from the computer system to the pen drive by PW-1.
He stated that the computer system was State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 30/69 installed in the office in the Special Cell in 2005 and that "I cannot exactly tell how many times there was a breakdown in the computer system from the year 2005 to the year 2008." In his cross-examination by counsel for A-1, he stated "I was throughout present with SI Harbir Singh when he copied the data from the monitoring system. It took about 8-9 hours to copy the data. He further stated "SI Harbir Singh copied all the data in his own pen drive."
77. It appears that as far as the original computer system which was used, the evidence of PW-30 makes it clear that he was in charge of the supervision and custody of the said computer system. It is, however, apparent that PW-30 did not actually issue any certification under Section 65-B EA. While in terms of law explained by the Supreme Court in Navjot Sandhu the evidence of PW-30 may have been sufficient compliance with Section 65-B EA. However, in view of the subsequent decision in Anvar P.V. (supra) overruling the decision in Navjot Sandhu on this aspect, the electronic evidence in the present case is inadmissible.
78. There was no question of further secondary evidence to be produced in terms of Section 65B. Which is why the Supreme Court in Anvar P.V. held categorically that "Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B." The decision in Navjot Sandhu to the above extent was held to be no longer good law The Court in Anvar P.V. did not stop there. It further declared:
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 31/69 "Thus, in the case of CD, VCD, chip, etc, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record is inadmissible."
79. In other words, the law is now abundantly clear. If there is no certificate accompanying electronic evidence in terms of Section 65B i.e., such evidence is "inadmissible." This evidence is inadmissible because it does not satisfy the requirement of the law under Section 65B EA. Such evidence cannot be looked into.
Consequently, as far as the present case is concerned, the Court is satisfied that the intercepted telephone calls presented in the form of CDs before the trial court which were then examined by the FSL expert do not satisfy the requirements of Section 65- B EA. The net result is that the electronic evidence in this case in the form of the intercepted conversations and the CDRs cannot be looked into by the Court for any purpose whatsoever."
Similarly in case of S.M Katwal Vs. Virbadra Singh & Ors. Cr.M.P.(M) No. 11350 of 2013, the law on Section 65B of Evidence Act was laid and it was laid down as follows:-
"In this case the conditions specified under Section 65B (2) of the Evidence Act are not at all satisfied because nothing is there to show that the information in the CD was being regularly stored or processed in the computer or being regularly fed into the computer in the ordinary course of activity State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 32/69 and that the computer at the relevant time was being operated properly or when not operated properly the break, if any, not effected either the record or the accuracy of its contents as well as that the information in the electronic record (CD in the present case) is reproduction of the information fed into the computer in the ordinary course of the activity. The certificate duly signed by a responsible official dealing with the operation of the relevant device within the meaning of Section 65B(4) of the Evidence Act identifying the statement contained in the CD, the manner in which CD was produced, device used for preparation of the CD and its production by PW-21, who does not know anything as to how the same is prepared and by whom and with what device, rendered the document inadmissible in evidence. It is not known as to who played the CD and maker of the statement has neither initialed the CD nor signed the transcript of the contents thereof. The CD during the course of enquiry and investigation remained unsealed throughout. The prosecution story reveals that it was unsealed when received by enquiry officer, remained unsealed during the course of enquiry and received unsealed by the Investigating Officer along with other records of the case. The CD Ex. PW-21/B, therefore, is not a document to be relied upon in evidence."
With respect to voice identification, Hon'ble Supreme Court of India had dealt with same in case titled as Nilesh Dinkar Paradkar Vs. State of Mahrashtra Crl. Apl. No. 537 of 2009;
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 33/69 (I) Voice Identification - Accurate voice identification is much more difficult than visual identification- It is Prone to such extensive and sophisticated tampering, doctoring cautious in basing conviction purely on evidence of voice identification.
No attempt made to mix the voices of accused with some other unidentified voices-
In such circumstances, the voice identification evidence would have little value. Reliability and evidentiary value - Held, evidence of voice identification is prone to tempering doctoring and editing, thus rendering it more difficult vis a vis visual identification. Thus, court should exercise caution while basing conviction purely on evidence of voice identification. On facts, there was hardly any distinction in evidence regarding voice identification of accused no. 1 and 2 and accused no. 3 & 4. No attempt made to mix the voice of accused no. 3 and 4 with some other unidentified voices. Held, voice identification evidence not reliable".
The same position was reiterated by Hon'ble Delhi High Court in case titled as Roop Chand Vs. CBI Crl. Apl. No. 135 of 2001;
Tape recorded conversations - Evidentiary value - No evidence to show that cassette was not tempered with - Held, tape recorded conversation cannot be relied upo.
In case titled as Ram Singh & Ors Vs. Colonel Ram Singh, 1986 AIR, 3 1985 SCR Supl. (2) 399, it was held that :-
(1) the voice of the speaker must be
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 34/69
identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The voice of the speaker should be audible and not distorted by other sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory.
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out;
(5) The statement must be relevant according to the rules of evidence and (6) The recorded cassette must be carefully sealed and kept in safe custody. R. v.
Maqsud Ali [1975] 2 All E.R. 464 and B. v.
Robson [1972] 2 All E.R. 699, referred to.
In case of Ankur Chawla Vs. CBI, Crl. M.C No. 2455/12, it was held that :-
"In the instant case, the impugned order is silent about there being any certificate under Section 65B of the Indian Evidence Act, 1872 in respect of the audio and video CDs and even during the course of hearing, it was asserted on behalf of respondent-CBI that aforesaid mandatory certificate of 18th December, 2009 is there, but respondent- CBI has failed to show that such a certificate has been filed alongwith the chargesheet. Attention of this Court was not drawn to statement of any witness to show that inference of criminal conspiracy can be drawn against petitioners. Pertinently, State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 35/69 although this Court is not required to look into photocopy of certificate under Section 65B of the Indian Evidence Act, 1872 furnished in respect of fifteen CDs in packet 'A' but there is no such certificate in respect of the seven CDs in packet 'B' which is solely relied upon by the prosecution. Thus, aforesaid certificate (which is not on record) is of no avail. So, there is no point in now permitting the prosecution to place the original of such certificate on record. It was also not shown during the course of the hearing that when the CDs were prepared but since this case was registered on 23 rd November, 2009 therefore these CDs must have been prepared soon thereafter and the certificate under Section 65B of the Indian Evidence Act,1872 has to be of the date when the CDs were prepared but the photocopy of the aforesaid certificate shows that it was prepared on 18 th December, 2009 2009 and is thus of no avail".
In the present case the relevant witnesses who were supposed to give Certificate under section 65 B of Evidence Act are PW-11 Constable Ajay Kumar, PW-18 ASI Hira Lal, PW 23 SI Sanjeev Verma, PW-21 FSL Expert Sh. D.K Tanwar, PW-9 R.K Singh, Nodal Officer. It is seen that none of the witnesses have given requisite certificate U/Sec. 65 B of Evidence Act as has been referred to all the above judgments. The CDR has not been proved in accordance with law. It is also seen that Constable Ajay Kumar and ASI Hira Lal were only hearing the interceptions and were not the concerned persons State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 36/69 who were operating the said computer/electronic device and had the control and supervision. In any case certificate under Section 65 B has not been given with respect to the intercepted calls or preparation of CD's and therefore the voice sample report given by PW-21 Sh. D.K Tanwar has no evidentiary value and is not admissible in law and cannot be relied upon by the prosecution.
iii) Discrepancies in evidence- The following discrepancies have been noted in the evidence:-
a) PW-1 (Rahul Sharma) has nowhere stated that any search of Sunil Bhati (Accused No.5) was taken or that any money was recovered from the pocket of Coat of Sunil Bhati (Accused No.5). PW-1 (Rahul Sharma) had stated in his examination in chief that "Currency amounting to Rs. 2 Lakhs and above were recovered from a cloth bag from the dicky (boot) of the esteem". Further, even in his cross-examination dated 05.03.2009, PW-1 (Rahul Sharma has stated that "I had stated to the police that currency amounting to Rs. 2.00 Lakh and above were recovered from a cloth bag from the dickey of the Esteem"
b) PW3 (Sh. Rajinder Kumar Sharma) also stated the same version as PW-1, during the course of his evidence in Court.
According to PW3, Rajender Sharma, at the time of arrest of Sunil Bhati, Ashok Kumar Mishra and Upender, the said State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 37/69 recoveries of katta, suitcase and knife were made from the dikki of the esteem car. In his cross-examination dated 07.02.2008, PW-3 has stated that "The dikki of the Esteem Car was opened and checked and found containing some cash, knife and katta." Therefore, the alleged recoveries made from the pant and coat of the Accused No. 5 of Katta and cartridges and currency notes respectively are highly doubtful.
c) PW-1 had stated in his examination in chief dated 28.02.1006 that "Thereafter police party took me to special cell at Lodhi Colony where my statement was recorded and I was also asked to identify the case property i.e. country pistols, currency notes and a esteem car (golden) which I identified correctly." Therefore, the version of the prosecution that the articles were sealed and seized at the spot is demolished. PW- 1 has further stated in his cross-examination that "It is correct that I had signed the seizure memo of recovery and identification at Lodhi Road Special Cell, Delhi, which was prepared by the police in special cell itself."
d) PW-1 (Rahul Sharma) had stated in his cross- examination dated 5.03.2009 that "No proceedings were initiated at Sector-37, Noida". Thus, the story of the prosecution that the alleged recoveries of money and katta from Sunil Bhati (Accused No. 5) were made from the spot i.e. Sector 37, Noida is highly unreliable in view of the testimonies State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 38/69 of the witnesses.
e) Further, PW-2 (Zakir Ali/victim) had stated in his examination-in-chief dated 10.05.2006 that "On 29.02.2005 we were shown a desi Katta, one more desi katta, two knives, two cartridges, and one piece of rope was also shown with which we were tied. We all reached at spl. Cell office on 29-2-05 at about 9:30 AM and remained there till 4:30 pm. In the spl cell Rahul Sharma signed the documents." This statement further adds force to the case of defence and fortifies the fact that the alleged recoveries were never made from the spot. In fact, as per PW-2, the said documents were prepared on 29.02.2005, i.e. after 1 day of release of the hostages. Thus, the documents prepared in connection with the present case are fabricated and ante-timed. Also, during cross-examination, PW-2 has stated "I had not signed any documents at the spot.."
f) PW-2 had further stated in his cross-examination that "Police had called me to participate in interrogation for more than 6 to 7 times. It is correct that all the 6 to 7 times my statement was recorded by the police one on file and other on rough sheet....I was made to sign 5 to 6 papers. For the first time on 29-2-05 I was called at Lodhi Colony but I do not remember the subsequent dates." Therefore, the ante-timed documents regarding investigation were actually prepared only State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 39/69 on 29.02.2005 and the victims were merely made to sign the same. Thus, the prosecution's case regarding the recovery of cash and katta from Accused No. 5 is automatically demolished in view of the above mentioned testimonies and in fact, no recoveries were ever made from Accused No. 5 (Sunil Bhati). Apparently, the alleged documents have been manufactured and fabricated later on as per the convenience of the police and the victims/hostages were later on called at the special cell, lodhi colony to sign the fabricated documents.
g) Further, as per the case of the prosecution, statements by the investigating officers, as well as seizure memos exhibited as Ex. PW13/A, Ex. PW13/B and Ex. PW17/A, the Police officials went to a shop owned by PW17 (Iqbal Singh) in Gaffar Market where it is alleged that the accused persons bought the mobile phones and SIM cards used for committing the alleged offence. PW13 (Insp. V.N Jha) has stated in his examination in chief that "Thereafter I examined Shri Iqbal Singh, owner of the shop who identified both accused Jaideep and Sunil and stated that on 19.01.2005, these two persons had purchased one Panasonic GD-92 mobile phone at the cost of Rs. 1,800/- and two Airtel Prepaid SIM Cards (Pre activated) at the cost of Rs. 400/- from his shop. The shopkeeper stated that they had not given any identity proof in this regard. The photocopy of the notebook in which ikbal singh had made entry of sale of mobile phone and SIM card was taken into police State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 40/69 custody and the seizure memo is Ex. PW-13/A which bears my signatures at point A."
Whereas, PW-17, Iqbal Singh, has stated an entirely contradictory version during the course of his evidence in Court. PW-17 (Iqbal Singh) had stated in his cross-examination "Police never met me in respect of this case. It is correct that I later came to know the names of two persons, who had purchased mobile phone and SIM cards as Jaideep and Sunil Bhati. Volunteered (some police officials had come to me from PS Karol Bagh and they had stated me these two names and had also advised me to take identity proof from the customers.) I had not seen these two accused persons.......I had not given any photocopy of daily sales register to the police."
Thus, it is apparent that the police officers and investigating officers have forged and fabricated the entire investigation in order to falsely implicate Accused No. 5, Sunil Bhati. Further, Ex. PW-13/A bears the signatures of Iqbal singh, whereas PW-13, Insp. V.N Jha has explicitly stated in his cross examination that "...I did not obtain the signatures of Iqbal Singh and any other public witness on the photocopies of the said pages either."
h) Further, during his examination in chief as well as in his cross examination, PW13 Insp. V.N. Jha has not stated the IMEI number as well as SIM serial numbers which were seized by him during investigation. The said IMEI number as well as State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 41/69 SIM serial numbers have not even been mentioned and recorded in the seizure memos. (Ex. PW13/A, Ex. PW13/B and Ex. PW17/A), which creates a serious doubt on the case established by the prosecution.
iv) Fabricated disclosure statement and recovery of currency notes from accused no. 5.
During the course of trial, at the stage of compliance of Section 207 of the Code of Criminal Procedure, the accused persons were supplied several documents along with the chargesheet, including some duplicate documents pertaining to the same information as the other analogous well manipulated documents. Some of such documents are:-
A. Ex. PW-26/DA and Ex. PW-26/E, are two documents, both of which purport to be the disclosure statement of Accused No. 5 (Sunil Bhati). Ex. PW-26/DA was produced by the defense during the course of evidence and the same was confronted with witnesses and has been admitted by the prosecution witnesses. Inspc. Umesh Barthwal has stated in his cross examination that "Vol. this document is a photocopy of the original document." However, the contents of both these documents are distinct inasmuch as Ex.PW-26/DA, accused No. 5 had kept his share of Rs. 2.5 Lakh currency notes in State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 42/69 a box in his room of his house situated in his village (Chithera), whereas as per Ex. PW-26/E, his share of Rs. 2.5 Lakh rupees had already been recovered from the person of accused No.5.
Ex.PW-26/DA is a fabricated document inasmuch it does not even bear the signatures of Rahul Sharma and Insp. Umesh Barthwal, whose names have been written as witnesses. Moreover, no recovery had been made from the house of Accused No. 5, even as per the prosecution. Likewise, even Ex. PW-26/E is a false, fabricated and ante-timed document which had been later on prepared by the police officials. The contents of both the documents clearly point to only one fact that no such recovery from Accused No. 5, Sunil Bhati has taken place as shown by the prosecution and as such his alleged apprehension, presence or recoveries are false and fabricated.
B. Ex. PW-26/DB and Ex. PW-1/K, are two documents, both of which purport to be the seizure memo of currency recovered from Accused No. 5 (Sunil Bhati). Ex. PW-26/DB was produced by the defense during the course of evidence and the same was confronted with witnesses and has been State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 43/69 admitted by the prosecution witnesses. Ex. PW- 26/DB is the seizure memo of currency and pointing out memo of Accused No. 5, Sunil Bhati. The contents of Ex. PW-26/DB are also in clear contradistinction with the contents of Ex. PW-1/K and with the story established by the prosecution, as per which total 2.5 Lakh rupees of 1000 denomination were recovered from Sunil Bhati's (Accused No. 5) coats inner pocket at the spot, i.e. at Sector 37 Noida.
As per the contents of Ex. PW-26/DB, the currency notes amounting to R. 2.5 Lakh were recovered from a ploythene kept in an iron box in the corner of a room of the residential house of Sunil Bhati (Accused No. 5). The said Rs. 2.5 Lakh consisted of packets including 5 packets/Wads of Rs.
500. The said memo also consists the signatures of Rahul Sharma, whereas Rahul Sharma never stated to have visited the village of Sunil Bhati and the alleged recovery of the currency notes was made from the dickey of the Esteem car according to Rahul Sharma. Moreover, Ex. PW-26/DB does not bear the signatures of Insp. Umesh Barthwal, despite the fact that his name is listed in the list of witnesses in the said document.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 44/69 In fact all the above mentioned versions regarding the recovery of currency notes from Accused No. 5 are false and fabricated. As per the memo of Currency notes (Ex. PW-3/B), there were a total of 19 wads of currency notes in the denomination of Rs. 1000 and merely 2 wads of currency notes in the denomination of Rs. 500. Thus, the recovery of 5 wads/packets from Accused No. 5 is not possible in any case, when there existed merely 2 packets of Rs. 500 in the ransom money. Thus, it is apparent that the investigating officers have fabricated and manipulated the documents in order to falsely implicate Accused No. 5.
C. Ex. PW-26/DY and Ex. PW-1/G, are two documents, both of which purport to be the seizure memo of Katta and live cartridges recovered from Accused No. 5 (Sunil Bhati). Ex. PW-26/DY was produced by the defense during the course of evidence and the same was confronted with witnesses and has been admitted by the prosecution witnesses. It is pertinent to note that both these documents are false and fabricated. Ex. PW-26/DY does not bear the signatures of either Rahul Sharma or Insp. Umesh Barthwal, whose name have been written as State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 45/69 witnesses.
v) Non issuance of recovered currency notes by RBI on the date of its payment and subsequent recovery.
In the RTI reply sought by accused A.K.Mishra and proved by DW 1 Niket Joshi from RBI. In the RTI the accused had sought information regarding some series of numbers on the currency notes to know the date of issuance by RBI and the name of the bank branch to which the said currency notes were issued, the same was replied by the RBI vide Ex. DW 1/A, wherein it was stated that most of the notes forming part of alleged ransom amount had been issued after the year 2005 i.e. after the date of incident and therefore it is clear that the recovery of the said notes cannot be made on the date of the said recovery as the said notes were not even in circulation having not been issued by the RBI which casts serious doubt on the alleged recovery.
vi) Fabricated seizure memo of katta recovered from accused Sunil Bhatti.
It is seen that the prosecution during compliance under section 207 Cr. P.C. gave certain documents which seem to be duplicate of the original documents prepared by the IO. The said documents clearly show that there are manipulations, as in the photocopy of the State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 46/69 documents given to the accused of the same transaction and there are clear variations, for example in Ex. PW 1/C a sketch of country made pistol and cartridges recovered from the accused Sunil Bhatti had been shown which contains the signature of PW 1 Rahul, SI Umesh Barthwa and IO SI Girish Kumar along with the date. However, in the corresponding duplicate documents (the same is also sketch of the same weapon) no date is mentioned and did not bear the signature of victim Rahul Sharma and SI Umesh. It is seen that the existence of two contrary documents with respect to the same recovery shows variance. The said fabrication can be seen in light of statement given by PW 1 Rahul Sharma, during the course of his cross-examination which further corroborates the fact that all the proceedings took place at the special cell itself. PW-1 had stated that "thereafter police part took me to special cell at lodhi colony where my Statement was recorded and I was asked to identify the case property i.e countrymade pistols, currency notes and a esteem car (golden) which I identified correctly." PW-1 had further stated that "It is correct that I had signed the seizure memo of recovery and identification at Lodhi Road Special Cell, Delhi, which was prepared by the police in special cell itself." Thus, if Rahul Sharma was asked to identify the case property, including countrymade pistols, currency notes and a esteem car (golden) at the Special Cell, Lodhi Colony itself, then the story of the prosecution that the said articles were identified, sealed and seized at the spot (Sector 37 Noida) itself is absolutely demolished.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 47/69
vii) Fabricated arrest memo of accused no. 5.
Accused No. 5, Sunil Bhati has not been arrested on pointing out or identifying by any of the victims or in the presence of the victims Rahul Sharma and Zakir. PW-2 (Zakir), one of the hostages, in his cross examination has stated "Three accused persons were already arrested when we reached that place with the police. Their faces were not muffled at that time. It is correct that the accused persons were not arrested in my presence. I had not signed any paper at that place." Also, during the course of evidence, PW1, Rahul Sharma on 13.05.2009 has stated that "All the accused persons were shown to me at PS Lodhi Road. It was 8.30-8.45 am."
In his statement dated 04.09.2008, PW4 Tara Chand Sharma deposed that "after Rahul and Zakir were released and dropped by the accused persons from the Esteem car, he and his daughter Shivani took Rahul and Zakir to Laxmi Nagar". He stated that "At about 3.00 am the same Esteem car reached near the Petrol Pump and the persons sitting in the car dropped Rahul and his driver from that car. I along with Shivani took Rahul and his driver in our car to Laxmi Nagar." Thus, PW 1 Rahul Sharma was not present at the time of the alleged arrest of Accused No. 5 and his signatures on the Arrest memo of Accused No. 5 (Ex. PW-26/B) were obtained subsequently at Special Cell, Lodhi Colony, after preparing the said fabricated document.
The identification of the accused was not available to the State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 48/69 investigating agency and was subsequently introduced by the investigating officer in order to connect him with the commission of the offence. In fact it seems that accused No. 5, Sunil Bhati was apprehended from his residence in Village Chithera, U.P. on the next day and at that time nothing was recovered from him .Thereafter, he was taken to the Office of the Special Cell and then was shown to Rahul Sharma and Zakir Ali. The accused Sunil Bhati has not been arrested in the manner, date, time and place as stated by the prosecution. The alleged recoveries of Katta, cartridges and currency notes have been planted later on by preparing fabricated documents, that is why there are so many discrepancies and errors occurring in various documents.
Further, PW-13 (Insp. V.N Jha) has stated in his cross- examination that "I do not remember the dates when accused Jaideep and Sunil Bhati were arrested. They were not arrested in my presence. Accused persons were handed over to me at about 9:30 AM on 03.03.2005 at Special Cell, Lodhi Colony. I had not made any entry in DD register regarding the handing over of the above said accused persons to me for the purpose of investigation...."
Thus, it is apparent that neither the statements/evidence of any witness nor any of the contemporaneous documents claimed to have been prepared in connection with the search and seizure which, establishes the complicity of the accused Sunil Bhati (Accused No. 5) in the present case in any manner.
viii) Fabricated identification of accused no. 5.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 49/69 In the present case, at the stage of compliance with Section 207 of the Code of Criminal Procedure, the accused persons were supplied several documents along with the chargesheet, including some duplicate documents pertaining to the same information as the other analogous well manipulated documents.
The following discrepant and duplicate documents of the same nature regarding the identification of accused No. 5 by Rahul Sharma and Zakir Ali further strengthens the argument of the defense that the investigation is fabricated:
DOCUMENT ANALOGOUS/ INFERENCE
CORRESPONDIN
G DOCUMENT
Ex.PW-1/S-12 Ex. PW-26/DM Ex. PW-1/S-12 is a
(Identification (Identification fabricated and ante-timed
memo of memo of Accused document inasmuch its
Accused Sunil Sunil Bhati by analogous document Ex.
Bhati by Rahul Rahul Sharma.) PW-26/DM does not bear
Sharma.) any date under the
signatures of SI Girish
Kumar at point C.
Ex. PW-26/2 Ex. PW-26/DR Ex. PW-26/2 is a
(Identification (Identification fabricated and ante-timed
memo of memo of Accused document inasmuch its
Accused Sunil Sunil Bhati by analogous document Ex.
Bhatiby Zakir Zakir Ali.) PW-26/DR does not bear
Ali.) any date under the
signatures of SI Girish
Kumar at point B.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 50/69
Moreover, even otherwise, identification of accused persons in the presence of police officers has no evidentiary value and is inadmissible.
ix) No test identification parade ever conducted.
Inspector Girish Kumar (PW-27) has clearly stated and admitted in his evidence that no judicial T.I.P. was ever conducted and Inspector Girish, along with other Police Officials had not taken any precaution before apprehending the accused persons.
In his Cross-examination, PW-27, Inspector Girish Kumar has explicitly stated that "We had not taken any precaution before apprehending the accused persons to keep them in muffled face before exposing them to Rahul Sharma and Zakir. I did not get any judicial T.I.P. of any of the accused conducted. I did not keep any of the accused persons in muffled face during the course of investigation."
Test identification parade (TIP) is necessary in cases where the accused persons are not known to the witnesses and in the present case no TIP was conducted, even though the hostages claimed that he did not know the accused persons before the date of incident. It is settled law that identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence.
In the case of the Apex Court in Dana Yadav Vs. State Of State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 51/69 Bihar (2002)7 SCC 295, it was observed that "The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law."
x) Fabricated investigation with respect to other accused persons.
a) No recoveries made in the presence of the victims:
PW-1 has stated in his examination in chief dated 28.01.2006 that "Accused Gajender and Satish were found at the spot and some money was recovered from them, I cannot say the amount. Again said I had not seen any money being recovered from the above said accused but only I had been shown the sealed parcels by the police." This statement shows that the articles alleged to be recovered were neither shown nor sealed in the presence of the victim Rahul Sharma, and at the most Rahul Sharma was merely shown the sealed parcels.
b) The hostages did not accompany the police and investigating officers during the course of investigation at the houses located in alpha and beta (Greater Noida, U.P): Further, during the course of evidence, Rajinder Kumar Sharma (PW-3) has stated in his examination in chief dated 07.02.2008, that "I do not remember if the Police party was led to House No.F-90, Alpha-II, Greater Noida to the house where Rahul and Zakir were confined. It is wrong to suggest that Rahul identified that house. Rahul was sent home." This is totally contradictory to the case of the prosecution.
Thus, the victims/hostages, Rahul Sharma and Zakir Ali were never State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 52/69 taken to House No. F-90, Alpha-II, Greater Noida along with the Police Officials and they were sent home. Further, it is highly improbable that the hostages would accompany the police and the accused persons to apprehend the other accused persons.
c) Arrest memo of Accused persons is fabricated: As per the arrest memo of the accused Jaideep (Ex. PW26/P), he was arrested at 10.40 am and as per the arrest memo of the accused Gokhran (Ex. PW26/Q), he was arrested at 10.45 am. However, it is pertinent to note that during cross-examination of PW1 Rahul Sharma, he has stated that "All the accused persons were shown to me at PS Lodhi Road. It was 8.30-8.45 am." Thus, it is apparent that the accused persons were not even arrested at the time as alleged by the prosecution.
Further, according to the statement of PW2, Zakir Ali "When Gokhran was apprehended it was about the rising of sun." This is in clear contradiction with the documentary evidence on record, i.e., the arrest memo of the accused Gokhran (Ex. PW26/Q), as per which the accused was arrested at 10.45 am on 28.02.2005.
d) There are other documents along with the duplicate documents as shown in the table below:-
DOCUMENT ANALOGOUS CORRESPONDING
DOCUMENT
Ex. PW-26/DC is the Ex. PW-1/S-15 is also pointing out pointing out memo of memo of accused Gokharan by accused Gokharan by Rahul Sharma.
Rahul Sharma.
FIR No.71/2005, PS: Special Cell (Civil Lines) 53/69
According to Ex. PW- According to Ex. PW-1.S-15, Rahul
26/DC, Rahul Sharma Sharma identified accused
identified accused Gokharan at G-149, Sector Beta,
Gokharan at F-90, Greater Noida, U.P.
Alpha-II, Greater
Noida, U.P. However,
the said document
does not bear the
signatures of Rahul
Sharma. It does not
even bear any date. This is a fabricated and manipulated
document which was prepared later
on by the police to fill in the gaps in
the story of prosecution.
It is a well manipulated document
with and contains the signatures of
Rahul Sharma (victim), Umesh
Barthwal and Girish Kumar along
with date.
e) Discrepant and Duplicate documents of the same
nature, purporting to be seizure memo of articles recovered from accused Ashok Kumar Mishra: It is pertinent to note that both Ex. PW-1/J and Ex. PW-26/DE, purport to be the a seizure memo in respect of recovery made from Ashok Kumar Mishra.
DOCUMENT CORRESPONDING/ANALO
GOUS DOCUMENT
PW-1/J is seizure memo in Ex. PW-26/DE 15 is also respect of recovery made seizure memo in respect of from Ashok Kumar Mishra. recovery made from Ashok State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 54/69 Kumar Mishra.
It bears date (28.02.2005) It does not bear either any and the signatures of SI date or signatures of SI Girish Girish Kumar.
Kumar.
PW-26, Insp. Umesh Barthwal, has stated in his cross- examination that "I have seen Ex. PW-1/J which is a seizure memo in respect of recovery made from Ashok Kumar Mishra. It was prepared at the spot i.e. Surajpur Road near Sector-37 crossing Noida.......No Photocopy of Ex. PW-1/J was got done in my presence at the spot. I was not asked by SI Girish Kumar ever for preparation of photocopies of all the documents or any of the document to be supplied to the accused." However, if the statement of PW-27 (Insp. Umesh Barthwal) is believed, then the abovementioned two documents would not have existed. Therefore, the evidence of the witnesses is unreliable. In fact, the foundation of the present case is based upon fabricated investigation.
f) Several other discrepant and duplicate documents:
In the present case, at the stage of compliance with Section 207 of the Code of Criminal Procedure, the accused persons were supplied several documents along with the charge sheet, including some duplicate documents pertaining to the same information as the other analogous well manipulated documents. There is a series of such pair of analogous documents of the same nature and some of them are indicated herein below:
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 55/69
Document Analogous/Co Inference
rresponding
Document
Ex. PW-1/M Ex. PW-26/DG Ex. PW-1/M is a
(seizure memo of (seizure memo fabricated and ante-
Rs. 2 Lakh from of Rs. 2 Lakh timed document
Accused from Accused inasmuch its analogous
Gajender) Gajender) document Ex. PW-26/DG
does not bear any date
under the signatures of
SI Girish Kumar at point
D.
Ex. PW- Ex. PW-26/DH( Ex. PW-8/A is a
8/A( pointing out pointing out and fabricated and ante-
and seizure memo seizure memo timed document
of bundle of of bundle of inasmuch its analogous
currency notes currency notes document Ex. PW-26/DH
recovered from recovered from does not bear any date
accused Upender) accused under the signatures of
Upender) SI Amul Tyagi.
Ex. PW-1/O Ex. PW-26/DI The difference between
(seizure memo of (seizure memo the two documents is
handbag and of handbag and that Ex. PW-26/DI does
rupees from rupees from not bear any date under
accused Jaideep) accused the signatures of SI
Jaideep) Girish Kumar at point D..
Thus, it is implicit that the
said document is
fabricated and ante-
timed.
Ex. PW-1/S-10 Ex. PW- Ex. PW-1/S-10 is a
(Identification 26/DJ(Identifica fabricated and ante-
memo of Accused tion memo of timed document
Ashok Kumar Accused Ashok inasmuch its analogous
Mishra by Rahul Kumar Mishra document Ex. PW-26/DJ
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 56/69
Sharma) by Rahul does not bear any date
Sharma) under the signatures of
SI Girish Kumar at point
C.
Ex. PW-1/S-9 Ex. PW-26/DK Ex. PW-1/S-9 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Satish Kumar by Accused Satish inasmuch its analogous
Rahul Sharma) Kumar by document Ex. PW-26/DK
Rahul Sharma) does not bear any date
under the signatures of
SI Girish Kumar at point
D.
Ex. PW-1/S-11 Ex. PW-26/DL PW-1/S-11 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Jaideep by Rahul Accused inasmuch its analogous
Sharma) Jaideep by document Ex. PW-26/DL
Rahul Sharma) does not bear any date
under the signatures of
SI Girish Kumar at point
C.
Further, even the
signatures of Rahul
Sharma on the document
Ex. PW-1/S-11 at point A
appears to be forged by
the police officials.
Ex. PW-1/S-12 Ex. PW-26/DM Ex. PW-1/S-12 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Sunil Bhati by Accused Sunil inasmuch its analogous
Rahul Sharma.) Bhati by Rahul document Ex. PW-26/DM
Sharma.) does not bear any date
under the signatures of
SI Girish Kumar at point
C.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 57/69
Ex. PW-1/S-13 Ex. PW-26/DN PW-1/S-13 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Upender Kumar by Accused inasmuch its analogous
Rahul Sharma) Upender Kumar document Ex. PW-26/DN
by Rahul does not bear any date
Sharma) under the signatures of
SI Girish Kumar at point
C.
PW-1/S-14 Ex. PW-26/DO PW-1/S-14 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Gajinder Singh by Accused inasmuch its analogous
Rahul Sharma.) Gajinder Singh document Ex. PW-26/DO
by Rahul does not bear any date
Sharma.) under the signatures of
SI Girish Kumar at point
C.
Ex. PW-1/S-15 Ex. PW-26/DP Thus, there exist 3
(Identification (Identification duplicate documents
memo of Accused memo of purporting to be
Gokharan Kumar Accused identification memo of
by Rahul Sharma) Gokharan Accused Gokharan.
Kumar by Moreover, even the
It is mentioned Rahul Sharma contents of Ex. PW-1/S-
that accused Ex. PW-26/DC 15 and Ex. PW-26/DC
Gokharan was As per Ex. PW- are distinct regarding the
apprehended from 26/DC, accused place of apprehension of
G-149, Beta II, Gokharan was Accused Gokharan.
Greater Noida, UP. apprehended Further, PW-26/DC is an
from F-90, undated documents and
Alpha-II, does not even bear the
Greater Noida. signatures of Rahul
Sharma and Insp.
Umesh Barthwal. PW-
26/DP is also an undated
documents and does not
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 58/69
bear the signatures of
Rahul Sharma.
Apparently, all the above
said documents have
been forged and
fabricated by the police
officers.
Ex. PW-26/1 Ex. PW-26/DQ Ex. PW-26/1 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Upender Kumar by Accused inasmuch its analogous
Zakir Ali.) Upender Kumar document Ex. PW-26/DQ
by Zakir Ali.) does not bear any date
under the signatures of
SI Girish Kumar at point
B.
Ex. PW-26/2 Ex. PW-26/DR Ex. PW-26/2 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Sunil Bhati by Accused Sunil inasmuch its analogous
Zakir Ali.) Bhati by Zakir document Ex. PW-26/DR
Ali.) does not bear any date
under the signatures of
SI Girish Kumar at point
B.
Ex. PW-26/3 Ex. PW-26/DS Ex. PW-26/3 is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Upender Kumar by Accused inasmuch its analogous
Zakir Ali) Upender Kumar document Ex. PW-26/DS
by Zakir Ali) does not bear any date
under the signatures of
SI Girish Kumar at point
B.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 59/69
Ex. PW-26/N Ex. PW-26/DT
Ex. PW-26/N is a
(Identification (Identification
fabricated and ante-
memo of Accused memo timed of document
Jaideep by Zakir Accused
inasmuch its analogous
Ali.) Jaideep by
document Ex. PW-26/DT
Zakir Ali)
does not bear any date
under the signatures of
SI Girish Kumar at point
B.
Ex. PW-26/O Ex. PW-26/DU Ex. PW-26/O is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Gokharan by Zakir Accused inasmuch its analogous
Ali) Gokharan by document Ex. PW-26/DU
Zakir Ali) does not bear any date
under the signatures of
SI Girish Kumar at point
B.
Ex. PW-26/M Ex. PW-26/DV Ex. PW-26/M is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Gajender by Zakir Accused inasmuch its analogous
Ali.) Gajender by document Ex. PW-26/DV
Zakir Ali.) does not bear any date
under the signatures of
SI Girish Kumar at point
B.
Ex. PW-26/L Ex. PW-26/DW Ex. PW-26/L is a
(Identification (Identification fabricated and ante-
memo of Accused memo of timed document
Satish Kumar by Accused Satish inasmuch its analogous
Zakir Ali.) Kumar by Zakir document Ex. PW-
Ali.) 26/DW does not bear
any date under the
signatures of SI Girish
Kumar at point B.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 60/69
g) Contradictions and other relevant factors for
consideration in the evidence of witnesses.
i) As per the complaint (Ex. PW 3/A), "Rahul along with his driver Zakir Ali left the house at 1:30 PM in the afternoon in his Lancer Car No. DL 1 CG 7555 magic Black Colour for his shop at Chawri Bazar".
Whereas, during the course of evidence, PW-1 (Rahul Sharma) has stated that "on 25.02.2005 I alongwith my driver Jakir proceeded for Greater Noida from my home at about 11:30 AM/12 Noon in my black lancer car No. DL 1CG 7555..." Thus, it is uncertain as to whether the hostages were heading towards shop at Chawri Bazar or towards Greater Noida for meeting with one Thomas.
ii) Further another major loophole in the story established by the prosecution is that the in the complaint (Ex. PW-3/A), the complainant has stated that "After some time, my son -Rajat informed me that Lancer Car of Rahul is parked in State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 61/69 VIP parking of New Delhi Railway Station, where my son, Rahul often parks car while going out." Thus, the presence of car at the New Delhi Railway Station belies the version of the prosecution that the hostages went to Greater Noida (Alpha market) for meeting with Thomas. If Rahul Sharma had actually gone to Greater Noida alongwith his driver Zakir Ali in his Lancer car, then the same car would not have been found at New Delhi Railway Station. In fact, on 25.02.2005, Rahul Sharma had normally parked his cars like he often used to park and no such incident had taken place.
iii) In the complaint (Ex. PW-3/A), it is stated that "At 3:30 PM, my daughter-in-law, Shivani tried contacting Rahul at his Mobile No. 9810084881, but failed. Then Shivani contacted driver Zakir Ali at his mobile No. 9891784881 and he told Shivani that Rahul is inside office and he will let her talk to him once he comes out." If, Zakir Ali and Rahul Sharma were actually in Greater Noida as alleged by the prosecution, it is anomalous as to why Zakir Ali stated that Rahul is inside office.
iv) No proceedings ever took place either at Noida State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 62/69 Sector 37 on surajpur-greater Noida road, where 3 accused persons (Sunil Bhati, Ashok Kr. Mishra and Upender) were allegedly apprehended and arrested, or at F-90, Alpha-II, Greater Noida, UP, where 2 accused persons (Satish Kr. And Gajinder) were allegedly arrested as well as at G- 149, Beta II, Greater Noida, UP, where 2 accused persons (Jaideep and Gokharan) were allegedly apprehended and arrested.
The entire proceedings with respect to the present case have been manufactured and fabricated by the police officials and investigating officers at the Special Cell itself. Even PW-1 (Rahul Sharma) has stated in his cross-
examination that "thereafter police part took me to special cell at lodhi colony where my Statement was recorded and I was asked to identified the case property i.e countrymade pistols, currency notes and a esteem car (golden) which I identified correctly."
"It is correct that I had signed the seizure memo of recovery and identification at Lodhi Road Special Cell, Delhi, which was prepared by the police in special cell itself." Therefore, the version of the prosecution that the articles were sealed and seized at the spot is demolished.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 63/69
v) On bare perusal of Ex. PW27/B, it is evident that the site plan of the place where the victims were allegedly kept as hostages was prepared on 28.02.2005. However, PW1 Rahul Sharma, during his examination gives a totally contradictory statement with respect to the making of the site plan of the said place. He states that the sketch of the site plan was prepared after two days, which clearly negates the making of the sketch of site plan on 28.02.2005. He states that "I visited the house at Alpha-II and the second house again and the sketch of the site was prepared by the police after two days. I do not remember the exact time when we had gone for preparation of sketch."
vi) PW1 Rahul Sharma, throughout his examination in court, has given contradictory statements which makes the story of the prosecution unbelievable and false. During his examination, on the one hand he states that "Prior to the date of incident i.e., 25.05.2005 on Thomas used to talk on my telephone for the last 5/6 days,"
whereas on the other hand, he states that he had been talking to one Thomas from past 1 month before going to Greater Noida.
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 64/69
vii)As per the prosecution, the victims Rahul Sharma and his driver Zakir Ali were allegedly kidnapped/ abducted on 25.02.2005 and were released by the accused persons on the early morning hours of 28.02.2005. However, as per the statements of Zakir Ali (PW-2), he was kidnapped/ abducted on 25.02.2005 and released on the next day. He states that: "On the next day in the night myself and Rahul Sharma were taken in a esteem car of golden color....".
viii) As per the statement of PW-11, the kidnapper used to call the relatives of Rahul Sharma, from mobile No. 9810084881, i.e., the mobile of Rahul Sharma (which is registered in the name of his father, Sh. Rajender Kr. Sharma). However, it is pertinent to note that the investigating officers neither seized the mobile phones of Rahul Sharma and Zakir Ali nor sent the same for expert evidence, despite the fact that the said mobile phones formed a crucial part of the investigation inasmuch as the same were used by the kidnappers for making ransom calls.
ix) It is the case of the prosecution that the State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 65/69 hostages accompanied the police officers during the entire investigation, beginning from apprehension of accused persons from Sector 37, Noida and subsequent apprehension of other accused persons from the houses situated in Sector Alpha II and Beta II, Greater Noida, UP.
Thus, accordingly, the hostages were accompanying the police officers from around 3:30 AM on 28.02.2005 and subsequently went to the house situated in Sector Alpha-II, greater Noida at around 6AM and then to the house situated in Sector Beta- II, Greater Noida at about 10 AM. As per the statement of Sh. Pawan Singh, Nodal Officer (Idea Cellular) the location of Zakir Ali (Mobile Phone No. 9891784881) at about 6:51 AM on 28.02.2005 was near Daya Nand Vihar (East District) and not Greater Noida. PW-24, Pawan Singh, has stated in his cross-examination that "As per the document Ex. PW-24/F, the location of Mobile Phone No. 9891784881 on 28.02.2005 at about 6.51 AM in the area of Daya Nand Vihar (East District)"
x) According to the statements of Zakir Ali, preparation of all the documents like the seizure memos, recoveries, identifications, etc. as well as State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 66/69 the arrest of the accused persons took place on 29.02.2005 in the office of Special Cell, Lodhi Road and Rahul Sharma also signed all these relevant documents in the Office of the Special Cell only. This clearly shows that the documents have been fabricated by the Investigating Authorities in order to falsely implicate the said accused persons. The case of the prosecution that the recoveries were made on the spot and then sealed there itself is totally contradictory to the statements by the witnesses.
The relevant statements of Zakir Ali are as follows: "On 29.02.2005 when we were called at Special Cell Office, many persons were arrested amongst them." "...The items which were recovered from accused persons were reduced into writing and on that memo my signature was also obtained. On 29.02.2005 we were shown a desi katta, one more desi katta, two knives, two cartridges and one piece of rope was also shown with which we were tied. We all reached at Special Cell Office on 29.02.2005 at about 9.30 am and remained there till 4.30 pm. In the Special Cell Rahul Sharma signed the documents."
During his examination on 18.07.2006, PW2 Zakir Ali again reiterated this fact that "I had State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 67/69 not signed on any document at the spot."
15. Besides the above discrepancies, it is seen that the statement of PW 1 and PW 2 have been improved to the large extent and confrontation have been put to these witnesses in their cross examination. PW 3 and PW 4 are hostile to the prosecution case on material points, specially regarding PW 1 and PW 2 going to Greater Noida for recovery and arrest of the co-accused persons, wherein both these witnesses categorically stated that PW 1 and PW 2 immediately after their release at Noida went to Laxmi Nagar, Delhi. These witnesses were declared hostile and cross examined by the Ld. Addl. PP, but they denied that these witnesses went to the house where they were kept after abduction. The interceptions and voice sample are not proved. The order of Home Secretary and Joint C.P authorization has not been proved in accordance with law as these witnesses were never examined by prosecution and relevant certificate under section 65 B by concerned person has also not been proved.
In the case of Kulesh Mondal vs. State of West Bengal, AIR 2007 SC 3228, it has been observed as under:-
".............Material discrepancies are those which are not normal and not expected of a normal person. Courts have to level the category which a discrepancy may be categorized. While normal discrepancy do not corrode the credibility of a party's case, material State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 68/69 discrepancy do so................"
Further in the case of Namdeo Daulata Dhayagude and Ors. vs. State of Maharashtra, AIR 1977 SC 381, it has been observed as under:-
"(A) Evidence Act (1872), S. 3 -
Appreciation of evidence - contradictions in evidence of witness - Reliability of evidence.
Where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of details, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused."
16. In view of the above contradictions I am of the opinion that the prosecution is unable to prove its case against accused Jaideep, Sunil Bhatti, Gajender and Satish Kumar beyond reasonable doubt. In view of the same, all the accused persons namely Jaideep, Sunil Bhatti, Gajender and Satish Kumar are acquitted of charges framed against them. Sureties of the accused persons are discharged.
Announced in the open Court (SIDHARTH SHARMA)
on 6th April 2018 ASJ-02/FTC, PHC/NDD
06.04.2018
State vs. Ashok Kumar Mishra & Ors.
FIR No.71/2005, PS: Special Cell (Civil Lines) 69/69